Marie Manhaeve & Alice Asselberghs — June 1st 2023 marks the launch of the EU Unitary Patent system that aims to protect innovations in Europe more effectively and easily. This new regime consists of two pillars: the Unitary Patent and the Unified Patent Court.
The Unitary Patent (“UP”) is a unique patent providing uniform protection to the covered innovation across all participating countries of the Unified Patent Court Agreement (“UPCA”). The pre-grant phase to register a UP is identical to the registration of the already existing European Patent. The request for unitary effect is to be introduced in a second phase before the European Patent Office. Before the introduction of this single streamlined procedure, companies were obliged to register national patents in several offices, in order to gain protection across the EU. This new system will enable companies having limited resources to save both time and money and therefore favour innovative SMEs.
The Unified Patent Court (“UPC”) is a specialized European Court with exclusive jurisdiction over proceedings on the infringement and validity of both unitary and existing European patents. The UPC will facilitate the handling of patent disputes in participating EU Member States and its decisions will have a pan-European effect. It will create a consistent legal framework that avoids costly parallel national lawsuits and increases the protection of innovation and businesses’ overall competitiveness. A holder of a non-unitary European patent now has the possibility, under the conditions laid down in Article 83 of the UPCA, to opt-out from the UPC’s exclusive competence, whereupon only national courts will have jurisdiction to handle the litigation at stake.
The Unitary Patent system represents a radical change in European patent practice, establishing new standards for EU patent enforcement and protection. The launch of the Unitary Patent system demonstrates Europe’s commitment to innovation and to the protection of intellectual property. It will benefit European but also non-European innovators, help attract foreign investment, contribute to the strengthening of the internal market and foster Europe’s competitiveness.
The Unitary Patent system is based on enhanced EU cooperation, provided for in Regulation no 1257/2012 and Regulation no 1260/2012. The entry into force of the Regulations and therefore of the new system was linked to several necessary ratifications of the UPCA, the last of which occurred earlier this year by Germany. Germany’s ratification launched the countdown as set under Article 89 of the UPCA, according to which the Unitary Patent system would enter into force on the first day of the fourth month after the deposit of the thirteenth instrument of ratification (June 1st 2023). 17 Member States have now ratified the UPCA (including Belgium). For the remaining 8 Member States, nothing changes: the current European patent remains available to the non-contracting States, as well as each national patent. These non-contracting Member States are however expected to join in the coming years by ratifying the UPCA and the ultimate goal of the new Unitary Patent system is to provide EU-wide coverage.
